Citation Nr: 1303695 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-19 016A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an evaluation in excess of 10 percent for lumbosacral strain. ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from March 1954 to November 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Hartford, Connecticut (RO). A June 2009 rating decision granted service connection for left-sided nerve involvement, sciatica, associated with lumbosacral strain, and assigned a 10 percent rating effective November 29, 2007 under Diagnostic Code 8520. The Veteran requested a personal hearing before a member of the Board sitting at the RO in his July 2009 substantive appeal, and he was notified by VA in an October 2012 letter that a travel board hearing was scheduled for November 27, 2012. However, according to a VA Form 21-0820, Report of General Information, dated on November 26, 2012, the Veteran's son told a VA Rating Veterans Service Representative that the Veteran would be unable to attend any personal hearing because of advanced dementia. Consequently, the hearing request is considered withdrawn. See 38 C.F.R. § 20.702(d) (2011). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Relevant medical evidence shows motion of the low back to greater than 60 degrees of forward flexion, with combined motion to greater than 120 degrees; there is no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for service-connected lumbar strain are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in February 2008, prior to adjudication, which informed him of the requirements needed to establish entitlement to an increased rating. In accordance with the requirements of VCAA, the February 2008 letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Additional private medical evidence was subsequently added to the claims files. The Veteran was also informed in the February 2008 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA examination was conducted in February 2008. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the February 2008 VA examination is adequate, as it provides the symptomatology of the Veteran's low back disability, including range of motion. There is adequate medical evidence of record to make a determination on the issue denied in this case, to include private treatment records received subsequent to the VA evaluation. Although a more recent VA evaluation of the Veteran's lumbosacral strain was to be obtained in 2012, it is reported in the November 2012 Report of General Information form referred to above that the Veteran's medical condition prevented him from attending any VA examination. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination in this case has been met and that the case will be decided based on the evidence of record. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence that is pertinent to the claim decided herein has been obtained and that there is sufficient medical evidence on file on which to make a decision on the claim. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Analysis of the Claim A July 1982 rating decision granted service connection for lumbosacral strain and assigned a 10 percent rating effective December 1, 1981. A claim for an increased rating for lumbosacral strain was received by VA in November 2007, and was denied by rating decision in July 2008. The Veteran timely appealed. The Veteran is also currently assigned a 10 percent rating for left-sided nerve involvement, sciatica, associated with lumbosacral strain. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), where service connection has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). 38 C.F.R. § 4.40 notes that disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2011). 38 C.F.R. § 4.45 provides that factors of disability involving a joint reside in reductions of its normal excursion of movements in different planes of motion and therefore, inquiry will be directed to such considerations as weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination (impaired ability to execute skilled movements smoothly). 38 C.F.R. § 4.45 (2011). The Court has held that when a Diagnostic Code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Under the rating criteria, Diagnostic Code 5237 (lumbosacral or cervical strain) can be evaluated under the following general rating formula for diseases and injuries of the spine: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10 percent rating will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). Private treatment reports from J. Kozak, M.D., dated from May 2006 to September 2007, reveal that the Veteran complained in June 2006 of the return of lower back pain and left-sided sciatica without any triggering event. Examination of the lumbosacral spine did not show any significant scoliosis; he was nontender to palpation over the lumbar spinous process, paraspinals, and facet joints. There was good extension without significant complaints but decreased extension secondary to left leg pain. The assessments in June 2007 were lumbar radiculitis and lumbar stenosis with nerve involvement. When seen in July 2007, the Veteran noted that he was in severe pain from the low back down the left leg into the left calf that increased with standing and walking. Examination revealed that he walked with an antalgic gait; there was pain with flexion and significantly decreased extension secondary to left leg pain. The Veteran underwent epidural steriod injections to the lumbar región later in July 2007 and again in August 2007. When seen for follow-up in September 2007, the Veteran reported that he did not have any adverse effects from the epidural and that this was the best he had felt in a long time; he was not having any significant lower back complaints or radicular pain. He did not have any numbness, tingling, or focal weakness. On examination, there were mild restrictions in lumbar range of motion but no complaints of pain. The Veteran complained on VA spine evaluation in February 2008 of progressive low back pain. He noted a history of fatigue, loss of motion, stiffness, weakness, and weekly flare-ups lasting hours. He did not have a history of muscle spasms. Pain was predominately left-sided sciatica, worsened by walking. He said that he could not walk more than 400 yards during flare-ups. On physical evaluation, the Veteran had a normal gait. There was no abnormal curvature and no motor or sensory defect. Range of motion included forward flexion from 0 to 90 degrees without pain; backward extension from 0 to 30 degrees, with pain beginning at 20 degrees and ending at 0 degrees; side bending to the right from 0 to 30 degrees without pain; side bending to the left from 0 to 30 degrees, with pain beginning at 20 degrees and ending at 0 degrees; and bilateral rotation from 0 to 30 degrees, with pain beginning at 20 degrees and ending at 0 degrees. There was no additional loss of motion on repetitive use. X-rays of the lumbar spine showed degnerative joint disease (DJD), and the diagnosis in February 2008 was DJD with left sciatica. It was noted that the Veteran had retired due to age or duration of work and that there were no significant effects on his usual occupation. The Veteran's DJD with sciatica prevented sports; had a severe effect on exercise and recreation; had a moderate effect on travel; had a mild effect on shopping, chores, and dressing; and did not have any effect on feeding, bathing, going to the bathroom, and grooming. Private treatment reports primarily from Dr. Kozak, dated from March 2009 to October 2010, reveal a notation in March 2009 that there was mild restriction on lumbar range of motion with pain complaints at the endrange of extension. The Veteran was given epidural injections in April 2009, December 2009, and August 2010. He reported in May and December 2009 that he did not have any back pain; it was noted in May that there were mild restrictions in lumbar range of motion with no pain complaints. It was reported in September 2010 that the Veteran had minimal back pain that was not functionally limiting. According to an October 2010 Physical Therapy Evaluation report, the Veteran's lumbosacral range of motion included forward flexion with fingers to the floor, bilateral side bending with fingertips to the lateral joint line of the knee, and extension within normal limits without pain. The Veteran was considered an appropriate candidate for skilled physical therapy to address goals such as increase mobility of the lumbar spine to within normal limits, increasing core strength from poor to good, and to increase postural awareness and demonstrate proper lifting techniques. Based on the relevant evidence of record, as summarized above, the Board finds that the criteria for a rating in excess of 10 percent for the Veteran's lumbosacral spine disability under the General Rating Formula have not been met during the pendency of this claim. Forward flexion of the thoracolumbar spine has exceeded 60 degrees, and combined range of motion has exceeded 120 degrees, even after repetitive testing, as shown in the February 2008 VA examination report. Thus, a rating in excess of 10 percent under the General Rating Formula based on range of motion is not warranted. There is also no competent medical evidence showing muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Court has held that when evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss due to pain and weakness, excess fatigability, and incoordination causing additional disability beyond that reflected on range of motion measurements. See 38 C.F.R. §§ 4.40, 4.45 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the schedular criteria do not subsume sections 4.40 and 4.45). The Board finds that an increased rating is not warranted under the DeLuca criteria. While the February 2008 VA examination report shows increased pain after repetitive motion testing, there was no additional limitation of motion of the lumbosacral spine on repetitive range-of-motion testing. The Board notes that the General Rating Formula already accounts for pain, which is generally a concomitant of limitation of motion. See 38 C.F.R. § 4.71a; 68 Fed. Reg. 51, 454, 51,455 (Supplementary Information). The fact that even after repetitive testing the Veteran's range of motion of the lumbosacral spine exceeded the ranges of motion corresponding to a 20 percent rating, with forward flexion exceeding the range of motion for a 10 perent rating, indicates that a higher rating is not warranted under the DeLuca criteria for pain associated with range of motion. Although the Veteran reported weekly flare-ups in February 2008, he indicated that his flare-ups were related to his sciatica, for which he is assigned a separate compensable evaluation. As previously reported, when examined in February 2008, the Veteran had forward flexion to 90 degrees and no additional functional impairment on repetitive motion despite his complaints. Although he received multiple epideral injections during the appeal period, with complaints of severe back pain in July 2007, he responded very well to the injections. In fact, it was reported in September 2007, May 2009, December 2009, and September 2010 that he had minimal or no back pain; and there were only mild restrictions of lumbar range of motion, with pain complaints at the endrange of extension, in March 2009. In sum, the Board finds that the schedular criteria for a rating in excess of 10 percent for the Veteran's lumbosacral spine disability have not been met at any point during the pendency of this claim. Thus, the severe pain reported in July 2007 was too transient to suggest a chronic disability picture warranting a higher rating at that time. As such, staged ratings are not warranted for the period of time on appeal. See Hart, 21 Vet. App. at 509-10. The General Rating Formula indicates that associated neurologic abnormalities are to be rated separately under the appropriate diagnostic code. In this case, service connection was separately established for radiculopathy of the left lower extremity in a June 2009 rating decision, which assigned a 10 percent rating. The Veteran did not appeal this evaluation. Therefore, the evaluation of the Veteran's associated neurological symptoms is not before the Board. The Board notes the findings of degenerative disease of the lumbar spine on VA evaluation in February 2008. However, the Veteran is not service connected for degenerative disease of the low back and the medical evidence does not indicate that the Veteran's degenerative disease is causally related to his service-connected lumbosacral strain. The Board acknowledges the Veteran's subjective complaints of pain and functional limitations. However, while the Veteran is competent and credible with regard to his subjective complaints, the Board gives more weight to the objective medical evidence with regard to the severity of his lumbosacral spine disability as reflected in the VA examination report and other treatment records on file. In fact, as noted in the medical evidence, the Veteran reported on several occasions that his low back was doing well, without significant pain or functional limitation. The Board has also considered whether the Veteran's claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this case, the Board finds that referral for extraschedular consideration is not warranted. As shown in the above discussion, the Veteran's service-connected lumbosacral strain is contemplated and reasonably described by the rating criteria, to include the General Rating Formula, which account for pain, stiffness, limitation of motion, and functional limitations associated with disability of the spine. Id. The Veteran does not have symptoms associated with this disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. Accordingly, a comparison of the Veteran's symptoms and functional impairment with the schedular criteria does not show that the Veteran's lumbosacral strain presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability. In the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Therefore, referral for extraschedular consideration is not warranted. Finally, the Board finds that the preponderance of the evidence weighs against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to a rating in excess of 10 percent for the Veteran's lumbosacral strain is denied. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. §§ 3.102 ; 4.3; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to a rating in excess of 10 percent for lumbosacral strain is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs